Community Power Network Corporation d/b/a Solar United Neighbors v. JEA, a Florida municipal electric utility ( 2021 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D19-4687
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COMMUNITY POWER NETWORK
CORPORATION d/b/a SOLAR
UNITED NEIGHBORS,
Appellant,
v.
JEA, a Florida municipal
electric utility,
Appellee.
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On appeal from the Circuit Court for Duval County.
Virginia Norton, Judge.
September 9, 2021
NORDBY, J.
Utility customers who opt to install solar panels on their
houses don’t simply use energy—they also generate it. During the
day, when the sun is out, these residential rooftop solar panels will
typically produce more energy than the household will consume.
This excess energy can travel through the utility company’s
electrical grid (and the utility company may sell it to other
customers). And at night (or on a cloudy day), when the solar
panels are not producing energy, the household receives its energy
from that same grid. This dynamic has led to “net metering,” where
utility customers offset their energy consumption from the grid
with the excess solar energy they transmit to the grid.
Beginning in 2009, JEA allowed its customers to receive credit
for any excess solar energy they generated at the full electric retail
rate per kilowatt-hour. This changed in 2018, when JEA’s new
Distributed Generation Policy took effect. Under the 2018 Policy,
solar customers receive credit at much less than the retail rate.
In response, Community Power Network Corporation, d/b/a
Solar United Neighbors (SUN) sued JEA, arguing that the new
policy failed to provide a net metering program as required by
Florida law. JEA raised several arguments in defense, including a
challenge to SUN’s standing. The trial court ultimately rejected
SUN’s claims for declaratory and injunctive relief and entered
final judgment for JEA. Because SUN lacks standing to challenge
JEA’s 2018 Policy, we affirm.
I.
Appellant SUN is a nonprofit corporation incorporated in the
District of Columbia. Its activities include encouraging residential
utility customers to organize into solar cooperatives, usually
consisting of fifty to one hundred neighbors. SUN provides
education to these groups on “going solar,” including the economics
of solar energy and the selection of a solar-equipment installer for
the group. In return, for every residential home that installs solar
equipment, SUN receives a fee from the contractor selected to
install the equipment for the cooperative’s members.
Appellee JEA is a nonprofit, community-owned municipal
electric utility created by the Florida Legislature and the City of
Jacksonville. In 2008, the Florida Legislature amended Section
366.91, Florida Statutes, to require municipal electric utilities, like
JEA, to “develop a standardized interconnection agreement and
net metering program for customer-owned renewable generation.”
§ 366.91(6), Fla. Stat. (2018); Ch. 2008-227, § 41, at 50, Laws of
Fla. That statute defines “net metering” as “a metering and billing
methodology whereby customer-owned renewable generation is
allowed to offset the customer’s electricity consumption on site.”
§ 366.91(2)(c), Fla. Stat.
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At first, JEA used a simple net metering methodology: a 1 to
1 ratio. Under JEA’s 2009 Net Metering Policy, if a solar customer
transmitted excess energy to JEA’s electric grid, JEA would credit
the customer for that excess power at JEA’s retail rate, that is, the
rate charged to customers per kilowatt-hour. By crediting excess
energy at the retail rate, 1 kilowatt-hour generated would offset 1
kilowatt-hour consumed. A solar customer, therefore, would pay
only for the net difference between the energy consumed and the
energy generated.
As customer-owned solar equipment became more prevalent,
JEA revisited the 2009 Policy and its use of the full retail rate to
credit customers for energy generated. JEA calculates its retail
rate using two primary components: (1) fuel costs (i.e., the cost of
natural gas or coal), and (2) capacity costs (i.e., the cost of building,
operating, and maintaining power plants, transmission
equipment, and distribution equipment across JEA’s electric grid).
The former makes up about thirty percent of JEA’s retail rate,
while the latter accounts for the remaining seventy percent. In
JEA’s view, while customer-generated solar energy reduced the
utility’s cost of electric generation by negating the need to
purchase fuel, it did not reduce JEA’s capacity costs to operate and
maintain the electrical grid.
JEA amended its policy to reflect these calculations. The new
2018 Distributed Generation Policy reduced the offset credit rate
from the full retail rate to the “fuel charge rate,” that is, the rate
representing fuel-related costs. This means that JEA now charges
its solar customers the full retail rate for kilowatt-hours consumed
and credits them at the much lower fuel charge rate for the total
kilowatt-hours generated and sent to the grid.
SUN had been preparing to launch a solar cooperative in
Jacksonville, Florida, but the organization cancelled those plans in
the wake of JEA’s 2018 Policy. Based on the new policy’s reduction
in the offset credit rate, SUN believed there was no longer a
financial incentive for JEA customers to install solar equipment.
SUN therefore sued for a declaration that the 2018 Policy
violates section 366.91, Florida Statutes, and sought an injunction
directing JEA to provide a lawful net metering program. JEA
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moved to dismiss the suit claiming, among other things, that SUN
lacked standing. The trial court denied that motion. Both parties
moved for summary judgment, with JEA again asserting various
arguments that included SUN’s lack of standing. Without
specifying the basis for its ruling, the trial court denied SUN’s
motion for summary judgment, granted JEA’s motion, and entered
final judgment for JEA.
II.
We review de novo a grant of summary judgment to determine
whether there are genuine issues of material fact and whether the
moving party is entitled to judgment as a matter of law. Carter
Dev. of Mass., LLC v. Howard, 285 So. 3d 367, 370 (Fla. 1st DCA
2019).
Because the trial court’s order did not explain the basis for
granting JEA’s motion for summary judgment, we must consider
all grounds raised in JEA’s motion and affirm if any theory
supports the decision. See Villa Maria Nursing and Rehab. Ctr.,
Inc. v. S. Broward Hosp. Dist., 8 So. 3d 1167, 1170 (Fla. 4th DCA
2009); see also Sunchase Apartments v. Sunbelt Serv. Corp., 596
So. 2d 119, 122 (Fla. 1st DCA 1992) (“[W]e also recognize the rule,
applicable to summary judgments as well as to other orders and
judgments, that an appellate court must affirm the trial court’s
decision if it is supported by any theory, regardless of the reasons
stated in the order or judgment.”). On the record before us, we
conclude SUN lacks standing, and we affirm without addressing
the other issues raised in JEA’s motion. *
Framed broadly, our standing inquiry seeks to gauge whether
a party has enough of a stake in a particular controversy. Nedeau
v. Gallagher, 851 So. 2d 214, 215 (Fla. 1st DCA 2003). Although
* In its motion for summary judgment, JEA argued that: (1)
SUN lacks standing; (2) the doctrine of sovereign immunity bars
SUN’s claims; (3) SUN’s claims are not justiciable because SUN’s
claims require the court to violate the separation of powers clause
of the Florida Constitution; and (4) JEA’s 2018 Policy follows
Florida law.
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there is no precise formula to divine the line between an interest
that is sufficient for standing purposes, and one that is not, Florida
courts look to three familiar concepts—injury, causation, and
redressability—to assess a plaintiff’s standing. See State v. J.P.,
907 So. 2d 1101,1113 n.4 (Fla. 2004). Under these concepts, a
plaintiff first must identify an actual or imminent injury that is
concrete, distinct, and palpable. Next, a plaintiff must establish “a
causal connection” linking the injury to the conduct being
challenged. Finally, a plaintiff must show a “substantial
likelihood” that the relief sought will remedy the alleged injury.
Id.; see also DeSantis v. Fla. Educ. Ass’n, 306 So. 3d 1202, 1213–
14 (Fla. 1st DCA 2020). At its core, standing exists when a plaintiff
can identify an injury caused by the defendant’s conduct that the
court can remedy.
Given this, SUN needed to prove the 2018 Policy caused SUN
harm. And in doing so, it had to rely on clear and ascertainable
facts, not speculation. See Sosa v. Safeway Premium Fin. Co., 73
So. 3d 91, 117 (Fla. 2011); see also McCall v. Scott, 199 So. 3d 359,
366 (Fla. 1st DCA 2016) (explaining that speculative and
conclusory allegations of harm cannot confer standing); Fla. Home
Builders Ass’n, Inc. v. City of Tallahassee, 15 So. 3d 612, 613 (Fla.
1st DCA 2009) (holding that speculative possibilities do not create
the necessary standing for declaratory or injunctive relief).
SUN did not meet this burden. Instead, it presented a
conclusory assertion of injury linked to the 2018 Policy by only a
tenuous chain of speculation. In SUN’s view, JEA’s change in
policy caused the nonprofit organization economic harm: The 2018
Policy, which reduced the offset credit rate for solar customers,
made installing solar rooftops within JEA’s territory less viable
financially for JEA customers. This was likely going to deter JEA
customers from choosing solar as a renewable energy option and
decrease any interest in joining a solar cooperative. So SUN
cancelled its plans to open a Jacksonville solar cooperative and lost
out on any potential revenue it might have earned in fees from
solar equipment installers hired by the cooperative.
Yet SUN gave little detail about its planned Jacksonville
cooperative. The cooperative never materialized because SUN
cancelled it before the scheduled launch. And SUN failed to
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identify, with any degree of certainty, a customer base who, but for
the 2018 Policy, would have participated in the cooperative. At
most, SUN identified a couple of willing individuals. But even
then, this Court would still have to speculate on whether (without
the 2018 Policy) SUN’s efforts to convince JEA customers to “go
solar” would have been successful, whether enough households
would have joined SUN’s cooperative, and whether this would have
led to payments from solar equipment installers (and how much).
What is more, this Court would have to accept the blanket
assumption that SUN could not have successfully established a
cooperative even with the 2018 Policy in effect.
As plaintiff, SUN bore the burden to establish all of this
through clear and definite facts. It failed to do so, and we decline
to fill these gaps with our own conjecture and assumptions.
Because SUN lacks standing to challenge the 2018 Policy, we
affirm the trial court’s entry of final summary judgment for JEA.
AFFIRMED.
ROWE, C.J., and WINOKUR, J., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Bradley Marshall and Bonnie Ann Malloy of Earthjustice,
Tallahassee, for Appellant.
R. Kyle Gavin, Assistant General Counsel; and Tiffiny Douglas
Pinkstaff, Assistant General Counsel, Office of General Counsel,
Jacksonville, for Appellee.
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